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Case: 23-50675 Document: 82-1 Page: 1 Date Filed: 12/20/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 23-50675 December 20, 2024
____________
Lyle W. Cayce
Clerk
United States of America,
PlaintiffâAppellee,
versus
Emmanuel Antione Hemphill,
DefendantâAppellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:22-CR-306-1
______________________________
Before Jolly, Graves, and Wilson, Circuit Judges.*
E. Grady Jolly, Circuit Judge:**
A jury convicted Emmanuel Antoine Hemphill, who represented him-
self during trial, of escape from custody under 18 U.S.C. § 751(a) and posses-
sion of a firearm by a felon under 18 U.S.C. § 922(g)(1). On appeal,
Hemphill, now represented by counsel, argues that his convictions should be
vacated because the district court erred in admitting certain evidence,
_____________________
*
Judge Graves concurs in the judgment only.
**
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50675 Document: 82-1 Page: 2 Date Filed: 12/20/2024
No. 23-50675
limiting his cross examination of a witness, and denying his motion to sup-
press. He also argues that his felon in possession of a firearm conviction is
unconstitutional under the Commerce Clause of the U.S. Constitution. For
the following reasons, we AFFIRM.
I.
In March 2022, the Bureau of Prisons transferred Hemphill, who was
serving a sentence for conspiracy to possess with intent to distribute cocaine
and for possession with intent to distribute more than 28 grams of cocaine,
from a prison to a halfway house for the duration of his sentence. When he
arrived at the halfway house, Hemphill participated in the halfway houseâs
intake process. As part of this, Hemphill signed a form recognizing that he
remained in custody, could not leave the halfway house without permission,
and would be considered to have escaped from custody if he left the halfway
house without permission.
Even so, ten days after arriving, Hemphillâwith all his belongings in
towâleft the halfway house without permission, never to return. His unau-
thorized departure was witnessed by Maria de le Garza, the halfway houseâs
Residential Monitor. Although Hemphill later asserted that he left the half-
way house because he was in danger, de la Garza and her supervisor were not
aware of any danger faced by Hemphill at the halfway house.
After Hemphillâs departure from the halfway house, de la Garza cre-
ated an escape flier featuring Hemphillâs photograph and a summary of his
escape. Using this escape flier, Deputy U.S. Marshal Damian Fernandez
procured a criminal complaint against and arrest warrant for Hemphill based
on his escape.
Two months later, in May 2022, Bexar County Sheriffâs Deputy An-
drew Delgado noticed a white Chrysler 300 speeding on the highway. Del-
gado turned on his lights and sirens in an effort to pull the vehicle over, but
2
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No. 23-50675
the driverâwho would later be identified as Hemphillâdid not pull over.
Instead, he merged onto the interstate and continued driving for miles, forc-
ing Deputy Delgado and, later, other law enforcement officers to pursue him.
When Hemphill finally pulled over, he and his passenger, Tiwanika McDay,
exited the vehicle and identified themselves as instructed.
When Deputy Delgado ran Hemphillâs name through his law enforce-
ment database, he discovered a federal warrant for Hemphillâs arrest. When
Bexar County Sheriff Deputy Joseph Gereb was speaking with McDay, she
informed him that there were two firearms as well as drugs in the vehicleâs
glove compartment. At that point, Deputy Gereb and another officer on the
scene searched the vehicleâs glove compartment. They found and took pos-
session of two pistols, methamphetamine, cocaine, marijuana, and a bottle of
pills later identified as Xanax.1 Hemphill and McDay were both arrested that
day. While in custody, Hemphill wrote, signed, and had notarized an affida-
vit admitting that he owned all the contraband found in the vehicle.
Hemphill was indicted for escaping from custody in violation of
§ 751(a) and as a felon in possession of a firearm in violation of § 922(g)(1).
He opted to represent himself. Before trial, Hemphill unsuccessfully moved
to suppress evidence found during the search of his vehicle on the grounds
that it was an unlawful warrantless search. Also prior to the trial, the Gov-
ernment informed Hemphill that it planned to present evidence regarding the
drugs in his glove compartment. The Government asserted that this evi-
dence was admissible as either intrinsic evidence or under Federal Rule of
Evidence 404(b). Hemphill did not respond. As a result, the district court
_____________________
1
At some point the officers discovered that the Xanax was prescribed to McDay.
Additionally, we note that the Presentence Investigation Report states that these pills were
Buspirone Hydrochloride rather than Xanax as testified to by Deputy Delgado.
3
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No. 23-50675
told the Government during the pretrial conference that it would be permit-
ted to present this evidence at trial.
During the trial, the Governmentâs case featured testimony from
seven witnesses as well as dash and body camera footage documenting the
traffic pursuit, Hemphillâs arrest, and the search of Hemphillâs vehicle. Be-
cause Hemphill did not stipulate to his prior felonies, the Government had
San Antonio Police Sergeant Jesse Allen testify regarding Hemphillâs prior
felony convictions in support of the felon in possession of a firearm charge.
As planned, the Government also offered evidence regarding the drugs dis-
covered in the glove compartment. Although Hemphill did not present a de-
fense, he objected to various evidence during the Governmentâs case. He
also insinuated, during his opening statement and cross examinations, that he
was a âfall guy,â that law enforcement had planted the guns in his glove com-
partment, and that the affidavit containing his admission was not genuine.
The jury ultimately found Hemphill guilty of both escape from cus-
tody and being a felon in possession of a firearm. Hemphill now appeals his
convictions on five grounds.
II.
On appeal, Hemphill argues that his convictions should be vacated be-
cause (1) the district court erred in permitting Sergeant Allen to testify that
he was assigned to the San Antonio Police Department Gang Unit; (2) the
district court erred in permitting Deputy Delgado to testify that the drugs
found in his glove compartment appeared to be packaged for distribution; (3)
the district court erred in limiting his cross examination of Deputy Fernan-
dez; (4) the district court erred in denying his motion to suppress the evi-
dence found in his glove compartment; and (5) § 922(g)(1) is unconstitu-
tional under the Commerce Clause of the U.S. Constitution. We address
each argument in turn.
4
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No. 23-50675
A.
Hemphill first challenges Sergeant Allenâs testimony with respect to
his prior felony convictions. As noted above, Hemphill opted not to stipulate
to his previous felony convictions. As a result, the Government had Sergeant
Allen briefly testify about his 2012 investigation into Hemphill and
Hemphillâs resulting convictions for conspiracy to possess with intent to dis-
tribute cocaine and possession with intent to distribute cocaine in support of
the felon in possession of a firearm charge.2 Leading up to this testimony, the
Government asked Sergeant Allen foundational questions, including where
he worked within the San Antonio Police Department in 2012. Sergeant Al-
len responded that he was working with the San Antonio Police Department
Gang Unit. The Government proceeded to ask four additional questions, the
last of which related to whether Sergeant Allen became familiar with
Hemphillâs appearance during surveillance he conducted in 2012. At this
point, Hemphill objected on relevance grounds. Without specifying which
question or testimony he was objecting to, Hemphill asserted, âItâs irrele-
vant to whether I was convicted or not.â The district court overruled
Hemphillâs objection.
Hemphill now argues that Sergeant Allenâs testimony that he was as-
signed to a gang unit in the police department and surveilled Hemphill was
irrelevant.3 He also asserts that this testimony was unfairly prejudicial be-
cause it implied that he was a drug-dealing gang member. Even so, Hemphill
_____________________
2
To convict Hemphill of being a felon in possession of a firearm under § 922(g)(1),
the Government needed to prove that (1) Hemphill was a felon; (2) Hemphill knew he was
a felon; (3) Hemphill knowingly possessed a firearm; and (4) the firearm traveled in
interstate commerce. United States v. Robinson, 87 F.4th 658, 667 (5th Cir. 2023).
3
Hemphill also asserts that Sergeant Allen testified about his work on a drug detail,
but no such testimony appears in the trial transcripts.
5
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No. 23-50675
specifically clarifies that he did not and does not object to Sergeant Allenâs
testimony that Hemphill was previously convicted of felonies and the intro-
duction, through Sergeant Allenâs testimony, of the written judgment asso-
ciated with those felonies.
The Government responds that Sergeant Allenâs testimony was rele-
vant given Hemphillâs refusal to stipulate to his prior felony convictions, and
the Governmentâs resulting burden to show the jury that Hemphill was in-
deed a felon for purposes of the felon in possession of a firearm charge. Spe-
cifically, it argues that Sergeant Allenâs testimony as to his gang unit assign-
ment and surveillance of Hemphill was necessary to establish that Sergeant
Allen was familiar with Hemphill, and could credibly identify Hemphill in
court as the individual previously convicted of felonies in 2012. The Govern-
ment also argues that Hemphill was not unfairly prejudiced by Sergeant Al-
lenâs testimony because he never testified that Hemphill was involved in a
gang. Further, any inference that Hemphill was a drug dealer stemmed from
admission of the written judgmentâsomething that was only necessary be-
cause Hemphill chose not to stipulate to his felony convictions.
1.
âGenerally, we review a trial courtâs decision to admit evidence for
abuse of discretion.â United States v. Williams, 620 F.3d 483, 488 (5th Cir.
2010) (quoting United States v. Akpan, 407 F.3d 360, 373 (5th Cir. 2005)). If
we find an abuse of discretion, we then engage in a harmless error review
under which â[r]eversal is not required unless there is a reasonable possibil-
ity that the improperly admitted evidence contributed to the conviction.â
United States v. Valenzuela, 57 F.4th 518, 521 (5th Cir. 2023) (alteration in
original) (quoting United States v. Flores, 640 F.3d 638, 643 (5th Cir. 2011));
see also United States v. Meza, 701 F.3d 411, 425 (5th Cir. 2012); United States
v. Clark, 577 F.3d 273, 287 (5th Cir. 2009); United States v. Sumlin, 489 F.3d
6
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No. 23-50675
683, 688 (5th Cir. 2007). But where the defendant did not timely object to
the evidence, nor object to the evidence on the basis presented on appeal, we
review the district courtâs evidentiary ruling for plain error only. See Wil-
liams, 620 F.3d at 488â89 (citing United States v. Burton, 126 F.3d 666, 671
(5th Cir. 1997)); Sumlin, 489 F.3d at 688.
The parties dispute whether Hemphillâs objection to Sergeant Allenâs
testimony is preserved or unpreserved. Although we are dubious of
Hemphillâs claim that his objection was timely, we need not reach this ques-
tion because his argument fails under the more stringent abuse of discretion
standard. See United States v. Moparty, 11 F.4th 280, 295 (5th Cir. 2021) (de-
clining to decide whether an objection was preserved or not where the de-
fendantâs argument failed under the abuse of discretion standard); see also
Sumlin, 489 F.3d at 688â89 (finding that plain error review applies to testi-
mony after a non-continuing objection but before a second continuing objec-
tion because that testimony was not timely objected to).
2.
In his opening brief, Hemphill seemingly hints that Sergeant Allenâs
testimony about his gang unit affiliation and surveillance of Hemphill in 2012
is âbad-character, propensity evidenceâ in violation of Federal Rule of Evi-
dence 404(b). But the implicated testimony was merely foundational and
went to Sergeant Allenâs actions and knowledge rather than Hemphillâs ac-
tions or character. In any case, Hemphill explicitly states that he is not chal-
lenging Sergeant Allenâs testimony regarding his previous felony convictions
or the admission through Sergeant Allenâs testimony of the associated writ-
ten judgment. We therefore review the admissibility of Sergeant Allenâs
7
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No. 23-50675
challenged testimony under Federal Rules of Evidence 401, 402, and 403 ra-
ther than Rule 404(b).4
Rule 401 provides that evidence is relevant if âit has any tendency to
make a fact more or less probable than it would be without the evidenceâ and
âthe fact is of consequence in determining the action.â Fed. R. Evid.
401. Rule 402 deems relevant evidence admissible unless the U.S. Consti-
tution, a federal statute, the Federal Rules of Evidence, or other rules pre-
scribed by the Supreme Court provide otherwise. Fed. R. Evid. 402. Fi-
nally, Rule 403 states that relevant evidence can be excluded âif its probative
value is substantially outweighed by a danger of . . . unfair prejudice, confus-
ing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.â Fed. R. Evid. 403. âIn reviewing Rule
403 findings, we give âgreat deference to the [trial] courtâs informed judg-
ment and will reverse only after a clear showing of prejudicial abuse of dis-
cretion.ââ Clark, 577 F.3d at 287 (alteration in original) (quoting United
States v. Peden, 961 F.2d 517, 521 (5th Cir. 1992)).
As we have noted, Hemphillâs failure to stipulate to his previous fel-
ony convictions meant the Government had to prove this element of the felon
in possession of a firearm charge through alternate means, namely the written
judgment associated with his previous felonies. This task required proving
that the Hemphill on trial was the same Hemphill convicted of felonies
through that written judgment. Sergeant Allenâs testimony as to his work for
the San Antonio Police Departmentâs Gang Unit and surveillance of
_____________________
4
Even were we to characterize Sergeant Allenâs testimony as evidence of
Hemphillâs prior bad acts or character and evaluate it under Rule 404(b), Hemphillâs
argument would fail because evidence of a previous felony conviction is relevant and not
unduly prejudicial for purposes of proving a felon in possession of a firearm charge where
the defendant does not stipulate to his previous felony conviction. See United States v.
Jones, 930 F.3d 366, 374 (5th Cir. 2019).
8
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No. 23-50675
Hemphill in 2012 was certainly relevant and probative of whether he could
credibly identify Hemphill as the Hemphill convicted of felonies in that writ-
ten judgment. Hemphillâs assertion that this foundational testimony was ir-
relevant is thus meritless.
Hemphillâs further contention that this testimony was unduly preju-
dicial because it painted him as a drug-dealing gang member is also meritless.
â[I]t is not enough simply to show that the evidence is prejudicial as virtually
all evidence is prejudicial or it is not material.â Id. at 288 (quoting United
States v. Rocha, 916 F.2d 219, 239 (5th Cir. 1990)). âTo warrant reversal, the
prejudice must be unfair.â Id. (quoting Rocha, 916 F.2d at 239). This court
has upheld the admission of prior judgments of conviction in a felon in pos-
session of a firearm case where the defendant similarly refused to stipulate to
his previous felony conviction. See Jones, 930 F.3d at 374. If the details of a
felony conviction itself are not unduly prejudicial, foundational information
necessary to admit a prior written judgement can hardly be found unduly
prejudicial. See id. Accordingly, the district court did not err in permitting
Sergeant Allenâs testimony regarding his gang unit assignment and surveil-
lance of Hemphill in 2012.
Finally, even if the district court erred by admitting Sergeant Allenâs
challenged testimony, such error was harmless given the overwhelming evi-
dence of Hemphillâs guilt of escaping custody and being a felon in possession
of a firearm. See, e.g., Clark, 577 F.3d at 288.
B.
Hemphillâs second challenge concerns Deputy Delgadoâs testimony
regarding the drugs found in his glove compartment. As described above, the
Government advised Hemphill of its plans to admit evidence regarding these
drugs as either intrinsic evidence or admissible Rule 404(b) evidence. The
Government also raised this matter with the district court at the pretrial
9
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No. 23-50675
conference. Hemphill offered no response. Although the district court did
not clearly articulate whether evidence regarding the drugs was being admit-
ted as intrinsic evidence or pursuant to Rule 404(b), it advised the Govern-
ment that it would be âpermitted to go into that area.â
In accordance with this plan, the Government elicited testimony from
Deputy Delgado about the drugs found in Hemphillâs glove compartment.
Specifically, the Government asked Deputy Delgado whether there âwas an-
ything about the baggies [of drugs] that were relevant to [him] in [his] training
and experience as a sheriffâs deputy?â Hemphill did not object after this
question. Deputy Delgado responded, âYes, it appeared that they were
packaged with intent to be distributed.â After an additional question regard-
ing what Hemphill was arrested for and an additional partial question regard-
ing Hemphillâs female companion McDay, Hemphill objected on relevance
grounds. He did not specify which question or testimony he was objecting to
but explained â[i]tâs irrelevant to the facts of the caseâ and that he was âon
trial for weapons, not drugs.â The district court overruled this objection and
the Government proceeded to ask Deputy Delgado what McDay was ar-
rested for that day.
On appeal, Hemphill argues that Deputy Delgadoâs testimony that the
drugs were packaged for distribution was irrelevant under Rule 401, not in-
trinsic evidence, and inadmissible under Rules 403 and 404(b) because no
evidence of Hemphillâs motive was required to prove the felon in possession
of a firearm charge and because of its prejudicial nature.
The Government counters that this evidence was admissible under
Rule 404(b) because it is probative of Hemphillâs motive for possessing the
gunsâto protect himself and his drugs. According to the Government,
Hemphillâs motive was relevant because of Hemphillâs suggestions through-
out the trial that he was the âfall guyâ and that law enforcement had planted
10
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No. 23-50675
the two guns in his car. The Government further argues that this evidence
was not unduly prejudicial given the Governmentâs need to challenge
Hemphillâs defense theory that he was the âfall guy,â that the guns had been
planted by law enforcement, and that his affidavit confession was forged.
1.
âWe review the district courtâs admission of extrinsic offense evi-
dence over a [Rule] 404(b) objection under a âheightenedâ abuse of discretion
standard.â Jones, 930 F.3d at 373 (quoting United States v. Jackson, 339 F.3d
349, 354 (5th Cir. 2003)). âThe burden is on the government to demonstrate
âthat a prior conviction is relevant and admissible under [Rule] 404(b).ââ Id.
(quoting United States v. Wallace, 759 F.3d 486, 494 (5th Cir. 2014)).
The parties once again dispute whether Hemphillâs objection to Dep-
uty Delgadoâs testimony is preserved given the delay in Hemphillâs making
the objection and given Hemphillâs only objecting to the testimonyâs rele-
vance. Because Hemphillâs argument cannot withstand review under a
heightened abuse of discretion standard, we need not determine whether
Hemphillâs argument is preserved or whether unpreserved Rule 404(b) chal-
lenges are reviewed for plain error only. See id.; Moparty, 11 F.4th at 295;
Sumlin, 489 F.3d at 688â89.
2.
Rule 404(b) provides that â[e]vidence of any other crime, wrong, or
act is not admissible to prove a personâs character in order to show that on a
particular occasion the person acted in accordance with the character.â
Fed. R. Evid. 404(b)(1). Such evidence, which is sometimes referred to
as extrinsic evidence, is inadmissible because evidence concerning a defend-
antâs propensity to commit further criminal acts based on previous criminal
acts is believed to bear too much weight with juries, who may in turn prejudge
a defendant and deny him a fair opportunity to defend against a particular
11
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No. 23-50675
charge. Valenzuela, 57 F.4th at 521 (citing Old Chief v. United States, 519 U.S.
172, 181 (1997)). Extrinsic evidence of another crime or wrong may nonethe-
less be admissible for âanother purpose, such as proving motive, oppor-
tunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.â Id. (citing Fed. R. Evid. 404(b)(2)); Sumlin, 489 F.3d
at 689 (clarifying that Rule 404(b) only applies to evidence of extrinsic acts).5
Extrinsic evidence of prior crimes or wrongs is admissible under Rule
404(b) if it satisfies the two-prong test articulated in United States v. Beechum,
582 F.2d 898 (5th Cir. 1978) (en banc). âFirst, it must be determined that the
extrinsic offense evidence is relevant to an issue other than the defendantâs
character.â Id. at 911. We determine relevance under this step using the
standard prescribed in Rule 401. Id.; see also Fed. R. Evid. 401 (defining
relevance as âany tendency to make a fact [of consequence] more or less
probable than it would be without the evidenceâ). Additionally, â[a]n ex-
trinsic act is relevant to an issue other than the defendantâs character if it is
offered to prove one of the elements listed in Rule 404(b): âmotive, oppor-
tunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.ââ United States v. Kinchen, 729 F.3d 466, 472 (5th Cir. 2013)
(first citing Fed. R. Evid. 404(b); and then citing United States v. Sanders,
343 F.3d 511, 518 (5th Cir. 2003)).
âSecond, the evidence must possess probative value that is not sub-
stantially outweighed by its undue prejudice and must meet the other
_____________________
5
As previously noted, one of Hemphillâs arguments with respect to Deputy
Delgadoâs testimony is that it was extrinsic evidence rather than intrinsic evidence and
therefore subject to Rule 404(b). Although the Government argued that evidence
regarding the drugs found in Hemphillâs glove compartment was intrinsic evidence before
the district court, it does not rely on this argument before us. We thus assume without
deciding that Deputy Delgadoâs challenged testimony was extrinsic evidence and proceed
in our analysis.
12
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No. 23-50675
requirements of [R]ule 403.â Beechum, 582 F.2d at 911. Weighing probative
value and unfair prejudice under Rule 403 âcalls for a commonsense assess-
ment of all the circumstances surrounding the extrinsic offense.â Valen-
zuela, 57 F.4th at 522 (quoting Beechum, 582 F.2d at 914). Notably, in con-
ducting our Rule 403 analysis, we give great deference to the district courtâs
informed judgment. Id.; Kinchen, 729 F.3d at 473.
Here, the Government asserts that Deputy Delgadoâs testimony that
the drugs looked like they were packaged for distribution is relevant to
Hemphillâs motive for possessing the firearms. It further argues that
Hemphillâs motive for possessing the firearms is relevant because the prox-
imity between the drugs and the guns shows that Hemphill possessed the
guns to protect himself and his drugs and undermines Hemphillâs defense
that he is the âfall guyâ and that the guns were planted by law enforcement.
Although Hemphill is correct that the Government need not show
motive to prove its felon in possession of a firearm charge, we have upheld
the admission of extrinsic motive evidence in similar circumstances. See Kin-
chen, 729 F.3d at 472. For example, in United States v. Kinchen, we concluded
that evidence of a defendantâs prior possession of drugs and prior statement
that he sold drugs to support his family were relevant to his motive in a sub-
sequent drug dealing case. Id. at 472â73. We concluded this even though
motive was not an element of the charged offense because it helped establish
why the defendant wanted to commit the charged offense. Id. at 472. It also
helped counter the defendantâs strategy of portraying himself as merely a
drug user rather than a drug dealer. Id. at 472; see also United States v. Weems,
322 F.3d 18, 25 (1st Cir. 2003) (holding that evidence of drug dealing at the
house where defendant was arrested was admissible in a felon in possession
of firearm case to establish that the defendant had a motive to carry a fire-
arm).
13
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No. 23-50675
Given Hemphillâs strategy of suggesting that he was the âfall guyâ
and that the guns were planted by law enforcement, we agree with the Gov-
ernment. Evidence that the drugs were packaged for distribution supported
the Governmentâs theory that Hemphill possessed the guns to protect him-
self and his drugs. It also countered Hemphillâs defense theory.
Turning to the second step, the Government argues that any prejudice
stemming from Deputy Delgadoâs testimony as to the drugs was not unduly
prejudicial. It also argues that the probative value of Deputy Delgadoâs tes-
timony to Hemphillâs motive to possess the firearms and to countering
Hemphillâs defense strategy is not substantially outweighed by any prejudice
it creates. Hemphill posits that a jury in Texas was likely to view drug-dealing
more punitively than possession of a firearm and, in turn, that the prejudicial
nature of Deputy Delgadoâs testimony outweighed its probative value.
We again agree with the Government. As already discussed, Deputy
Delgadoâs testimony that the drugs appeared to be packaged for distribution
was highly probative of Hemphillâs motive for possessing the two firearms.
Hemphill himself rendered this evidence especially probative by persisting to
claim he was the âfall guyâ and that the guns had been planted in his car.
Additionally, the jury learned that Hemphill had previously been convicted
of drug-dealing crimes because Hemphill opted not to stipulate to his previ-
ous convictions. The jury also heard other testimony and saw photographs
suggesting that the drugs were packaged for distribution that were not ob-
jected to by Hemphill. Given this additional evidence of Hemphillâs drug-
related activities, it is difficult to imagine how Deputy Delgadoâs testimony
could be so prejudicial as to substantially outweigh its probative value.
Thus, we hold that the district court did not abuse its discretion in
admitting Deputy Delgadoâs testimony that the drugs found in Hemphillâs
vehicle were packaged for distribution. Even if it were admitted in error, the
14
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No. 23-50675
admission of this testimony would have been harmless error given the vast
evidence of Hemphillâs guilt of both offenses and the cumulative nature of
the challenged testimony. See Meza, 701 F.3d at 425; Clark, 577 F.3d at 288.
C.
Hemphillâs third argument is that the district court improperly re-
stricted his cross-examination rights when it did not let him break up a com-
pound question he asked Deputy Fernandez. One of Hemphillâs defense
strategies with respect to the escape charge was to show the jury that Deputy
Fernandez, who obtained the escape-related criminal complaint and arrest
warrant against Hemphill, lacked personal knowledge of Hemphillâs alleged
escape. After multiple questions pertaining to Deputy Fernandezâs lack of
personal knowledge regarding Hemphillâs alleged escape, Hemphill asked
the following question: âCan you personally confirm by way of fact that no
one at [the halfway house] forced the defendant to leave, gave him permission
to leave, or instructed him to leave?â The Government objected on the
grounds that this was a compound question. After the district court sustained
this objection, Hemphill asked the district court, âShould I ask that sepa-
rate?â The district court responded, âNo. Letâs move on.â Hemphill did
not object to this ruling. Instead, he continued with his cross examination
and asked additional questions about Deputy Fernandezâs personal
knowledge of his alleged escape.
On appeal, Hemphill asserts what is effectively a Confrontation
Clause violation. Hemphill argues that his inability to further question Dep-
uty Fernandez about his personal knowledge of his alleged escape compro-
mised his ability to test Deputy Fernandezâs credibility. He also asserts that
it contributed to the juryâs decision to convict him of escape. The Govern-
ment argues that the district court did not restrict Hemphillâs cross exami-
nation, but simply disallowed a compound question. It also points out that
15
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No. 23-50675
the district court allowed other questions and evidence concerning Deputy
Fernandezâs lack of personal knowledge as to Hemphillâs escape.
1.
We usually review an alleged Confrontation Clause violation de novo,
subject to harmless-error analysis. United States v. Martinez-Rios, 595 F.3d
581, 584 (5th Cir. 2010) (citing United States v. Morgan, 505 F.3d 332, 338
(5th Cir. 2007)). Where a defendant does not make a timely and specific
Confrontation Clause objection, however, we review that challenge for plain
error only. Id.
Although Hemphill asked the district court if he should ask his com-
pound question in separate parts and the district court refused to allow this,
Hemphill did not object to the district courtâs refusal and instruction to move
on. Contrary to Hemphillâs assertions, his lone question did not put the dis-
trict court on notice of a possible Confrontation Clause issue. Hemphillâs
Confrontation Clause challenge is therefore unpreserved and subject to re-
view for plain error only.6
Under plain-error review, Hemphill must show that (1) the district
court erred; (2) the error was clear or obvious; (3) the error affected his sub-
stantial rights; and (4) we should exercise our discretion to correct the error
because âthe error seriously affect[s] the fairness, integrity or public reputa-
tion of judicial proceedings.â United States v. Escalante-Reyes, 689 F.3d 415,
419 (5th Cir. 2012) (en banc) (alteration in original) (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009)).
2.
_____________________
6
See infra note 7 (analyzing Hemphillâs Confrontation Clause challenge as
preserved and subject to de novo review).
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No. 23-50675
Although the Sixth Amendment guarantees a defendant the right to
cross examine witnesses against him, a defendantâs right to cross examina-
tion is not unlimited. United States v. Bernegger, 661 F.3d 232, 238 (5th Cir.
2011) (citing United States v. Jimenez, 464 F.3d 555, 559 (5th Cir. 2006)).
â[T]rial judges retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the
issues, the witnessâ safety, or interrogation that is repetitive or only margin-
ally relevant.â Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (noting also
that âthe Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wishâ (quoting Delaware v. Fensterer, 474
U.S. 15, 20 (1985) (per curiam))).
A defendantâs right to cross examination is satisfied so long as the de-
fendant is âpermitted to expose to the jury the facts from which jurors, as the
sole triers of fact and credibility, could appropriately draw inferences relating
to the reliability of the witness.â Bernegger, 661 F.3d at 238 (quoting United
States v. Diaz, 637 F.3d 592, 597 (5th Cir. 2011)). To determine if a Confron-
tation Clause violation has occurred, we inquire into âwhether the jury had
sufficient information to appraise the bias and motives of the witness.â Id.
(quoting United States v. Tansley, 986 F.2d 880, 886 (5th Cir. 1993)).
Our consideration of the district courtâs decision begins and ends with
the first element of plain error review because we conclude that the district
court did not err in limiting Hemphillâs cross examination. Hemphill had
already asked several questions demonstrating to the jury that Deputy Fer-
nandez lacked personal knowledge as to Hemphillâs escape and relied on in-
formation from others when he sought a criminal complaint and arrest war-
rant against Hemphill. And the district court allowed Hemphill to ask addi-
tional questions on this subject after telling Hemphill he could not break up
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No. 23-50675
his compound question. The jury therefore had adequate information to ap-
praise Deputy Fernandezâs credibility based on his lack of personal
knowledge regarding Hemphillâs escape and reliance on information from
the halfway houseâs employees. See id. The district court was also well
within its right at this point in Hemphillâs cross examination to foreclose re-
petitive questioning. See Van Arsdall, 475 U.S. at 679. In any case, to the
extent there was error, it did not affect Hemphillâs substantial rights or seri-
ously affect the fairness, integrity, or public reputation of the proceedings
given the vast evidence supporting Hemphillâs escape conviction.7 See Mo-
party, 11 F.4th at 295.
D.
Hemphillâs fourth argument is that the district court erred in denying
his motion to suppress evidence located during law enforcementâs search of
his vehicle. Specifically, Hemphill argues that the firearms and drugs found
in his glove compartment should have been suppressed because neither the
_____________________
7
Even if we found Hemphillâs Confrontation Clause challenge to be preserved, it
would fail. See Bernegger, 661 F.3d at 237â38 (indicating that preserved Confrontation
Clause challenges are reviewed de novo, subject to a harmless error analysis, and that where
no Confrontation Clause violation occurred, the district courtâs limitation on cross
examination is reviewed for an abuse of discretion). As noted, the district court did not
violate Hemphillâs Confrontation Clause rights. And, in any case, the district court did not
abuse its discretion in limiting Hemphillâs cross examination because Hemphill was
nonetheless able to explore the issue of Deputy Fernandezâs personal knowledge of his
escape. He was therefore not clearly prejudiced. See id. at 237â39 (providing that a district
court does not abuse its discretion in limiting a defendantâs cross examination unless the
limitations were clearly prejudicial in that a reasonable jury might have had a significantly
different impression of the witnessâs credibility had defense counsel been permitted to
pursue the questioning). Further, even if the district court had abused its discretion in
limiting Hemphillâs cross examination, such error would be harmless given the
overwhelming evidence of Hemphillâs guilt of escape.
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No. 23-50675
automobile exception nor the inevitable-discovery doctrine permitted a war-
rantless search.8
1.
When reviewing the denial of a motion to suppress, we generally re-
view âfactual findings for clear error and legal conclusions about the consti-
tutionality of the conduct of law enforcement officers de novo.â United States
v. Montemayor, 55 F.4th 1003, 1008 (5th Cir. 2022) (quoting United States v.
Beene, 818 F.3d 157, 161 (5th Cir. 2016)). But âwhere, as here, the motion to
suppress was delegated to a magistrate judge, and the aggrieved party failed
to file objections to the magistrate judgeâs report and recommendation, de-
spite being notified of the consequences of a failure to so object, our review
is for plain error only.â United States v. Huerta, 770 F. Appâx 169, 170 (5th
Cir. 2019) (citing Douglass v. United Servs. Auto. Assân, 79 F.3d 1415, 1420â
23, 1428â29 (5th Cir. 1996) (en banc), superseded by statute on other grounds,
28 U.S.C. § 636(b)(1)); see also United States v. Seeley, 331 F.3d 471, 471 (5th
Cir. 2003), abrogated on other grounds by Terrence Boyd v. United States, 584
U.S. 395 (2018).
Under plain-error review, Hemphill must show that (1) the district
court erred; (2) the error was clear or obvious; (3) the error affected his sub-
stantial rights; and (4) we should exercise our discretion to correct the error
because âit seriously affects the fairness, integrity, or public reputation of ju-
dicial proceedings.â Huerta, 770 F. Appâx at 170 (citing Puckett, 556 U.S. at
135). Notably, we can affirm a suppression ruling on any basis supported by
the record. United States v. Clayton, 98 F.4th 256, 263 (5th Cir. 2024).
_____________________
8
Although Hemphill twice notes that his motion to suppress was denied without a
hearing, he does not brief this issue. We therefore do not consider it.
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2.
Under the Fourth Amendment, â[w]arrantless searches and seizures
are per se unreasonable unless they fall within a few narrowly defined excep-
tions.â Rountree v. Lopinto, 976 F.3d 606, 609 (5th Cir. 2020) (alteration in
original) (quoting United States v. Kelly, 302 F.3d 291, 293 (5th Cir. 2002)).
Two such exceptions are the automobile exception and the inevitable discov-
ery doctrine. Id.; United States v. Walker, 49 F.4th 903, 909 (5th Cir. 2022).
Because it is dispositive, we begin and end our analysis with the automobile
exception.
The automobile exception to the Fourth Amendment allows law en-
forcement to conduct a warrantless search of a vehicle when there is probable
cause to believe that the vehicle contains contraband or evidence of a crime.
Clayton, 98 F.4th at 263; United States v. Ned, 637 F.3d 562, 567 (5th Cir.
2011). This exception applies to vehicles pulled over on the highway. United
States v. Banuelos-Romero, 597 F.3d 763, 767 (5th Cir. 2010) (noting that in a
vehicle stop on a highway the vehicleâs potential mobility supplies the exi-
gency required to trigger the automobile exception).
âA law enforcement officer has âprobable cause to conduct a search
when the facts available to [him] would warrant a [person] of reasonable cau-
tion in the belief that contraband or evidence of a crime is present.ââ Clayton,
98 F.4th at 263 (alterations in original) (quoting Florida v. Harris, 568 U.S.
237, 243 (2013)). âThe test for probable cause is not reducible to âprecise
definition or quantification.ââ Id. (quoting Harris, 568 U.S. at 243). Rather,
showing probable cause requires only âthe kind of âfair probabilityâ on which
âreasonable and prudent [people,] not legal technicians, act.ââ Id. (alteration
in original) (quoting Harris, 568 U.S. at 244). In determining whether prob-
able cause exists, we consider the totality of the circumstances. Id. (citing
United States v. Fields, 456 F.3d 519, 523 (5th Cir. 2006)).
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Here, the law enforcement officers had more than sufficient probable
cause to support a search of Hemphillâs vehicle. First, even though the police
were in pursuit, Hemphill refused to pull over for several miles. Second, after
running Hemphillâs information, law enforcement learned that there was an
active warrant for his arrest. Third, Hemphillâs passenger, McDay, told law
enforcement that the vehicleâs glove compartment contained firearms and
drugs. Together, these facts certainly indicated probable cause to believe that
contraband or evidence of a crime was present in Hemphillâs vehicle, permit-
ting the officers to search it without a warrant.
Without support, Hemphill asserts that law enforcement needed to
have probable cause to believe his car contained contraband or evidence of a
crime when they pulled him over. This standard is not required under the
automobile exception, though. See, e.g., Banuelos-Romero, 597 F.3d at 765â69
(finding that probable cause existed for purposes of the automobile exception
based on information learned after a car had been pulled over). Hemphill also
makes much of the fact that he and McDay were out of the car and secured
when his vehicle was searched. In doing so, however, he conflates the re-
quirements of the automobile exception with the requirements of the search
incident to an arrest exception. Compare Clayton, 98 F.4th at 263 (providing
that a vehicle can be searched under the automobile exception when there is
probable cause to believe that the vehicle contains contraband or evidence of
a crime), with Arizona v. Gant, 556 U.S. 332, 343 (2009) (holding that a vehi-
cle can be searched incident to a recent occupantâs arrest when âthe arrestee
is unsecured and within reaching distance of the passenger compartment at
the time of the searchâ or when âit is âreasonable to believe evidence rele-
vant to the crime of arrest might be found in the vehicleââ (quoting Thornton
v. United States, 541 U.S. 615, 632 (2004))).
Accordingly, because, after the lawful stop of Hemphillâs automobile,
law enforcement had probable cause to believe that Hemphillâs vehicle
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No. 23-50675
contained contraband or evidence of a crime, the automobile exception ap-
plied. Hemphillâs vehicle could, in turn, be searched without a warrant. The
district court therefore did not commit plain error in denying Hemphillâs mo-
tion to suppress. Finally, because the automobile exception alone justifies
law enforcementâs search of Hemphillâs car, we need not consider whether
the inevitable discovery doctrine also applies.
E.
Hemphillâs final argument is that his felon in possession of a firearm
conviction should be vacated because § 922(g)(1) exceeds Congressâs au-
thority under the Commerce Clause. As Hemphill concedes, however, we
have consistently upheld § 922(g)(1)âs constitutionality under the Com-
merce Clause, including after the Supreme Courtâs decisions in United States
v. Lopez, 514 U.S. 549 (1995) and National Federation of Independent Business
v. Sebelius, 567 U.S. 519 (2012). See United States v. Alcantar, 733 F.3d 143,
145â46 (5th Cir. 2013).
Under the Fifth Circuitâs rule of orderliness, one panel of our court
may not overturn another panelâs decision absent an intervening change in
the law, such as by statute, the en banc court, or the Supreme Court.
Bonvillian Marine Serv., Inc. v. Pellegrin (In re Bonvillian Marine Serv., Inc.),
19 F.4th 787, 792 (5th Cir. 2021). Because there has been no intervening
change in law, we are bound by our prior precedents. We therefore conclude
that this argument is foreclosed.
III.
In sum, the district court did not err in admitting certain evidence,
limiting Hemphillâs cross examination, or denying Hemphillâs motion to
suppress, and Hemphillâs felon in possession of a firearm conviction does not
run afoul of the Commerce Clause. Accordingly, Hemphillâs convictions for
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No. 23-50675
escape from custody under 18 U.S.C. § 751(a) and possession of a firearm by
a felon under 18 U.S.C. § 922(g)(1) are, in all respects,
AFFIRMED.
23
Case Information
- Court
- 5th Cir.
- Decision Date
- December 20, 2024
- Status
- Precedential